Smalley v. Paine

• Decision Date: 24 February 1909
• Citation: 116 S.W. 38
• Parties: SMALLEY et al. v. PAINE et al.
• Court: Texas Supreme Court

116 S.W. 38

SMALLEY et al. v. PAINE et al.

Supreme Court of Texas.

February 24, 1909.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Action between Mrs. M. E. Smalley and others and Freeman Paine and others. From a judgment in favor of the latter, the former appeal. On certified question from the Court of Civil Appeals.

W. K. Makemson and Nunn & Munn, for appellants. F. M. Newman, Cooper Sansom, Blaine & Howth, Wilcox & Graves, and F. D. Love, for appellees.

GAINES, C. J.

This is a certified question from the Court of Civil Appeals of the Third District. The statement and question are as follows: "There is pending in this court a motion in the above-styled cause, made by the appellants and joined in by appellees, in which the request is made that the appellants be permitted to file the transcript in this cause in the Court of Civil Appeals. As a predicate to the hereinafter propounded questions, we find the following facts: That the transcript or record prepared in this cause was not presented to the clerk of this court for the purpose of being filed within the 90 days' time required by law; that prior to the time at which the record was delivered to the clerk of this court, and before the 90 days for filing the same had expired, there was an agreement between appellants and appellees, not in express terms, but what we hold to be substantially to the effect that the appellees would waive the requirement of the law that the record or transcript should be filed within the 90 days, and in effect agreed that the record could be filed after that time. There is also a written agreement signed by the appellees' attorneys appended to appellants' motion, to the effect that they waive time of filing of transcript, and in effect consent that the same may be filed now. We understand that this written agreement was filed in this court subsequent to the time that the transcript was delivered to the clerk. Other than as stated in the above finding, no sufficient reason is given why the transcript was not filed in this court within the 90 days as required by law. The transcript has not been filed in this court. It is an appeal by appellants from a judgment rendered against them in appellees' favor in the district court of Williamson county. In view of the above facts the Court of Civil Appeals of the Third Supreme Judicial District of Texas certifies to the Supreme Court of Texas the following question: Under the statute that requires the transcript to be filed in the Court of Civil Appeals within 90 days from the time of perfecting the appeal, is it permissible for the parties or their attorneys, by agreement, to waive the time in which the law requires the transcript should be filed, and by agreement consent that it may be filed after the expiration of the 90 days, and is such an agreement binding upon the Court of Civil Appeals?"

The statute under which this question arises reads as follows (Rev. St. 1895): "Art. 1015. In any appeal or writ of error as provided for in this chapter, the appellant or plaintiff in error shall file the transcript with the clerk of the Courts of Civil Appeals within ninety days from the performance of the appeal or service of the writ of error; provided, that for good cause the court may permit the transcript to be thereafter filed upon such terms as it may prescribe." By the literal terms of ...